How to actually protect privilege: A practical guide

Protecting Privilege Series / Part Three of Three

We’ve explored why privilege protection matters in Part 1 of this blog series and examined what happens when it fails in Part 2. Now let’s talk about solutions.

While technology created many of these risks, it can also solve them. With the right precautions and workflows, you can successfully defend privilege even in the most complex discovery battles.

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Download our free Protecting Privilege guide — a step-by-step guide that walks you through setting ESI protocols, structuring your review strategically, and implementing phased review to reduce risk.

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The 5 core rules for protecting privilege

Rule #1: Make an effort (and prove it)

This might sound like generic life advice, but it’s actually a specific command courts have delivered repeatedly in privilege cases.

Here’s the pattern:

• Lawyers produce evidence
• They discovery privileged information went to opposing counsel
• They argue it was an accident
• The court asks: “What did you do to prevent this?”
• Without proof of effort, the court shows little sympathy

What “Making an Effort” Looks Like:

The Harleysville case taught us that courts want to see actual security measures, not just good intentions. This includes:

• Password protection
• Multi-factor authentication
• Encryption
• Access restrictions
• Time-limited file sharing
• Audit trails

Rule #2: Privilege is earned, not automatic

The purpose of attorney-client privilege is to encourage free communication between clients and their attorneys. But here’s the critical part: if your legal team doesn’t actively defend privilege, consider it waived.

When Privileged Materials Are Leaked:

If you’re the producing party:

• Immediately file a motion to suppress or sequester
• Document every step you take to rectify the situation
• Move fast, remember the 10-day window

If you’re the receiving party:

• Keep detailed records of how you handled the documents
• Promptly notify opposing counsel
• Document their response (or lack thereof)
• If they fail to respond appropriately, you may be entitled to keep the files

The Alex Jones case showed us what happens when the producing party fails to act within the required timeframe.

Rule #3: Protect drafts and attachments

Email attachments have destroyed several prominent cases. Why? Because they’re easy to overlook during document review.

The Hidden Dangers:

When receiving emails for production, remember:

• Email attachments may contain privileged information even if the email itself doesn’t
• Draft documents often contain attorney work product
• Metadata can reveal privileged information about document creation
• Email threads may include privileged communications buried in earlier messages

Your Action Plan:

Before producing any documents:

1. Scan specifically for email attachments
2. Review any draft documents carefully
3. Check for duplicates that might slip through review
4. Examine email threads from top to bottom
5. Consider metadata implications

One overlooked attachment can unravel months of careful case preparation.

Rule #4: Keep a detailed privilege log

Simply put, a privilege log is a document that describes items withheld from production because of attorney-client privilege. Think of it as your insurance policy.

A Good Privilege Log Includes:

• Document description
• Date created
• Author/sender
• Recipients
• Basis for privilege claim
• Subject matter (without waiving privilege)

Why This Matters:

If a dispute arises about inadvertently produced materials, your privilege log becomes vital evidence that:

• You identified privileged materials systematically
• You made a good-faith effort to protect them
• You can demonstrate what should have been withheld

No privilege log = no proof you tried to protect privilege

Rule #5: Fix the problem fast

When you discover you’ve accidentally produced privileged information, speed is everything.

The Court’s Expectations:

Courts want to see evidence of:

• Quick identification of the privilege leak
• Immediate notification to opposing counsel
• Extensive efforts to rectify the situation
• Appropriate motions filed without delay

Your Emergency Response Plan:

Within 24 hours:

1. Identify exactly what was described
2. Notify opposing counsel in writing
3. Clearly assert privilege
4. Request return/destruction of materials

Within 10 days (or jurisdiction-specific deadline):

1. File formal motion if necessary
2. Amend your production response
3. Document all steps taken
4. Prepare for court hearing if needed

The faster you act, the better your chances of successfully clawing back privileged materials.

Technology solutions that actually work

Technology created this mess, but it can also solve it. Here are practical precautions that minimize risk and protect confidential information:

Evaluate Your Systems for Security

• How secure are all our communication systems (email, chat, file sharing, collaboration tools)?
• Are our review and production platforms encrypted end-to-end?
• Who controls user permissions, and how often are access levels reviewed?
• Can we track and audit every action taken on privileged documents?
• Do we have automated alerts or safeguards for potential privilege breaches?
• How are drafts, metadata, and attachments stored and reviewed?
• How long is data retained, and can we customize retention policies per matter?
• What happens to privileged data after a matter closes — is it archived securely or deleted?
• Is our team trained to recognize and respond quickly to inadvertent disclosures?
• Do our technology vendors meet compliance and confidentiality standards (SOC 2, ISO, etc.)?

Security can’t afford to be an afterthought given the sensitivity of privileged information. Privilege protection depends on both human diligence and the right technology to enforce it at every turn.

Ready to strengthen your privilege protection strategy?

From automated privilege detection and secure document review to instant privilege log creation, Nextpoint’s cloud-based ediscovery platform gives you the tools to protect attorney-client privilege from start to finish. Our technology streamlines the entire process — helping you identify, manage, and defend privileged materials with confidence.